Terms and Conditions

1. THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY.

THESE TERMS REQUIRE THE USE OF BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.

BY ACCESSING THIS WEBSITE AND PLACING AN ORDER FOR PRODUCTS FROM THIS WEBSITE, YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT, AND YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS. YOU AFFIRM THAT IF YOU PLACE AN ORDER ON BEHALF OF AN ORGANIZATION OR COMPANY, YOU HAVE THE LEGAL AUTHORITY TO BIND ANY SUCH ORGANIZATION OR COMPANY TO THESE TERMS AND CONDITIONS.

YOU MAY NOT ORDER OR OBTAIN PRODUCTS FROM THIS WEBSITE IF YOU (A) DO NOT AGREE TO THESE TERMS, (B) LEGAL AGE TO FORM A BINDING CONTRACT WITH BERG PERFORMANCE, INC, OR (C) ARE PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE’S CONTENTS OR GOODS BY APPLICABLE LAW.

These terms and conditions (these “Terms”) apply to the purchase and sale of products through http://www.bergperformance.com (the “Site”). These Terms are subject to change by Berg Performance, Inc. (referred to as “us”, “we”, or “our” as the context may require) without prior written notice at any time, in our sole discretion. Any changes to the Terms will be in effect as of the “Last Updated Date” referenced on the Site. You should review these Terms prior to purchasing any products that are available through this Site. Your continued use of this Site after the “Last Updated Date” will constitute your acceptance of and agreement to such changes.

These Terms are an integral part of the website Terms & Conditions that apply generally to the use of our Site. You should also carefully review our Privacy Policy before placing an order for products through this Site (see Section 8).

2. Order Acceptance and Cancellation. You agree that your order is an offer to buy, under these Terms, all products listed in your order. All orders must be accepted by us or we will not be obligated to sell the products to you. We may choose not to accept orders at our sole discretion. After having received your order, we will send you a confirmation e-mail with your order number and details of the items you have ordered. Acceptance of your order and the formation of the contract of sale between Berg Performance, Inc. You have the option to cancel your order by contacting us at: orders@bergperformance.com before we have sent your order confirmation e-mail.

3. Prices and Payment Terms.

(a) Prices posted on this Site may be different than prices offered by us and other retailers both on the internet and at physical locations. All prices, discounts, and promotions posted on this Site are subject to change without notice. The price charged for a product will be the price in effect at the time the order is placed and will be set out in your order confirmation email. Price increases will only apply to orders placed after such changes. Posted prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to your merchandise total and will be itemized in your shopping cart and in your order confirmation email. We strive to display accurate price information; however, we may, on occasion, make inadvertent typographical errors, inaccuracies or omissions related to pricing and availability. We reserve the right to correct any errors, inaccuracies, or omissions at any time and to cancel any orders arising from such occurrences.

(b) We may offer, from time to time, promotions on the Site that may affect pricing and that are governed by terms and conditions separate from these Terms. If there is a conflict between the terms for a promotion and these Terms, the promotion terms will govern.

(c) Terms of payment are within our sole discretion and, unless otherwise agreed by us in writing, payment must be received by us before our acceptance of an order. We accept most major credit cards, debit cards, cash, check, and wire transfer for all purchases. Charges to your credit card will appear as “Berg Performance”. You represent and warrant that (i) the credit card information you supply to us is true, correct and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including shipping and handling charges and all applicable taxes, if any, regardless of the amount quoted on the Site at the time of your order.

4. Shipments; Delivery; Title and Risk of Loss.

(a) We will arrange for shipment of the products to you. Please check the individual product page for specific delivery options. You will pay all shipping and handling charges specified during the ordering process. Shipping and handling charges are reimbursement for the costs we incur in the processing, handling, packing, shipping, and delivery of your order.

(b) Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments.

5. Goods Not for Resale or Export by Direct Consumers. You, as a direct consumer of the products, represent and warrant that you are buying products from the Site for your own personal or household use only, and not for resale or export. You further represent and warrant that all purchases are intended for final delivery to locations within the US.

6. Goods Not for Export by Business Customers. You, as a business consumer or reseller of the products, represent and warrant that you are buying products from the Site for use by your business or for resale by your business to customers located within the US. You further represent and warrant that all purchases are intended for final delivery to locations within the US.

7. Intellectual Property.

(a) This site and all of its contents (the “Content”) are the sole property of Berg Performance, Inc. This includes the graphics, logos, interface, layout, design, sounds, text, color scheme, blog posts, press releases, product names, product descriptions, ingredient lists, trademarks, software code, menus, and all other materials on this site. Marketing materials and logos incorporating the words “Berg Performance” or “Berg Peaks” are trademarked designs and are the property of or licensed to Berg Performance, Inc. You are not entitled to use, in any way, any of the intellectual property on this site for any reason without the written permission of Berg Performance, Inc. prior to such use.

(b) Subject to your compliance with this Agreement, we grant you a limited, non-exclusive, non-transferable, non-sublicensable license to access and make personal and non-commercial use of the Content on this site. This license does not allow you to resell or make any commercial use of the site, its Contents or our products sold through the site; make any derivative use of any of our Content; download, copy, or other use any Content or account information for the benefit of any third party; or use any data mining, robots, or similar data gathering and/or extraction tools. All rights not expressly granted to you in this Agreement are reserved and retained by us or our licensors, suppliers, publishers, rightsholders, or other content providers. No Content on, or product sold through, this site may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without our prior express written consent. You may not misuse our products or Content. You may use our site only as permitted by law and this Agreement. The licenses we have granted you terminate if you do not comply with this Agreement.

(c) This site may contain logos, trademarks, or other intellectual property belonging to third parties not affiliated with Berg Performance, Inc. You are responsible for complying with all legal obligations and the intellectual property policies related to any use by you of any third party’s intellectual property displayed on this site. You agree to indemnify and hold harmless Berg Performance, Inc. for any use by you of any third party’s intellectual property or proprietary information displayed on this site.

8. Privacy. We respect your privacy and are committed to protecting it. Our Privacy Policy, http://www.bergperformance.com/privacy-policy/, governs the processing of all personal data collected from you in connection with your purchase of products through the Site.

9. Returns and Refunds. We want you to feel confident with your purchase and want to provide you with the highest quality customer service. Our Return & Refund policy, http://bergperformance.com/return-policy/, governs all returns and refunds of products purchased through the Site.

10. Usage Limitations.

(a) You may not:

(1) Submit any false or misleading information to this site or use this site to submit any false or misleading information to Berg Performance, Inc. or any other party;

(2) Use this site to access any private network of Berg Performance, Inc., any other private proprietary information belonging to Berg Performance, Inc., or any other information not intended for customer use;

(3) Upload any harmful computer program or component, including any virus, malware, bot, trojan, worm, bomb, or any other computer component, program or action designed to damage and/or alter this site in any way, or to receive any proprietary information belonging to Berg Performance, Inc.;

(4) Take any action that disrupts or changes the functionality, content or accessibility of this site, including any act that takes down the site;

(5) Disguise your origin or that of any message sent by you, pretend to be somebody or something else, or impersonate anybody or anything;

(6) Use this site in any way for any purpose that is unlawful or in violation of this Agreement; or,

(7) Upload any content, including, but not limited to comments, feedback, or other submissions, that contains unlawful, offensive, threatening, libelous, defamatory, or otherwise objectionable material in violation of this Agreement.

11. User Comments, Feedback and other Submissions

(a) If, at our request, you send certain specific submissions (for example contest entries) or without a request from us you send creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, ‘Comments’), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium any Comments that you forward to us. We are and shall be under no obligation (1) to maintain any Comments in confidence; (2) to pay compensation for any Comments; or (3) to respond to any Comments.

(b) We may, but have no obligation to, monitor, edit or remove content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms & Conditions.

(c) You agree that your Comments will not violate any right of any third-party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your Comments will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of our services or any related website. You may not use a false e-mail address, pretend to be someone other than yourself, or otherwise mislead us or third-parties as to the origin of any Comments. You are solely responsible for any Comments you make and their accuracy. We take no responsibility and assume no liability for any Comments posted by you or any third-party.

12. Limited Warranty and Disclaimers for Direct to Consumer Sales.

THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH MAY VARY FROM STATE TO STATE.

WE WARRANT THAT DURING THE CONSUMER WARRANTY PERIOD, THE PRODUCTS PURCHASED FROM THE SITE WILL BE FREE FROM DEFECTS IN MATERIALS AND WORKMANSHIP.

WE LIMIT THE DURATION AND REMEDIES OF ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE DURATION OF THIS LIMITED WARRANTY.

TO THE EXTENT NOT PROHIBITED BY LAW, THIS WARRANTY IS EXLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED. EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THIS LIMITED WARRANTY STATEMENT AND TO THE EXTENT NOT PROHIBITED BY LAW, WE DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SOME STATES LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES, SO THIS DISCLAIMER MAY NOT APPLY TO YOU. TO THE EXTENT SUCH WARRANTIES CANNOT BE DISCLAIMED UNDER THE LAWS OF YOUR JURISDICTION, WE LIMIT THE DURATION AND REMEDIES OF SUCH WARRANTIES TO THE DURATION OF THIS EXPRESS LIMITED WARRANTY.

OUR RESPONSIBILITY FOR DEFECTIVE PRODUCTS IS LIMITED TO REPAIR, REPLACEMENT, OR REFUND AS SET FORTH IN THIS WARRANTY STATEMENT. NEITHER ANY PERFORMANCE OR OTHER CONDUCT, NOR ANY ORAL OR WRITTEN INFORMATION, STATEMENT OR ADVICE PROVIDED BY US OR ANY OF OUR SUPPLIERS, AGENTS OR EMPLOYEES WILL CREATE A WARRANTY, OR IN ANY WAY INCREASE THE SCOPE OR DURATION OF THIS LIMITED WARRANTY.

(a) Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the products. Third Party Products are not covered by the warranty in Section 12. For the avoidance of doubt, WE MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.

(b) Scope

This limited warranty extends only to the original consumer who purchased the products from the Site. It does not extend to any subsequent or other owner or transferee of the product or any transferee or other beneficiary of any services provided, if any.

THIS LIMITED WARRANTY CONTAINED IN THIS SECTION 12 SHALL ONLY APPLY TO TRANSACTIONS BETWEEN US WITH DIRECT CONSUMERS. ANY TRANSACTION BETWEEN US AND ANY BUSINESS SHALL BE GOVERNED BY THE WARRANTY TERMS CONTAINED WITHIN SECTION 13.

This limited warranty covers defects in materials and workmanship in products purchased from the Site during the Consumer Warranty Period.

(d) Warranty Exclusions

This limited warranty does not cover any damage due to:

(i) Transportation;

(ii) Storage;

(iii) Improper use;

(iv) Failure to follow product instructions;

(v) Modifications;

(vi) Combination or use with any products, materials, processes, systems or other matter not provided or authorized by Berg Performance, Inc.; or

(vii) External causes such as accidents, abuse, or other actions or events beyond our reasonable control.

(e) Warranty Term

This limited warranty starts on the date of your purchase and lasts for 30 days (the “Consumer Warranty Period”). The Consumer Warranty Period is not extended if we repair or replace a warranted product. We may change the availability of this limited warranty at our discretion, but any changes will not be retroactive.

(f) Warranty Remedies

With respect to any defective products during the Consumer Warranty Period, we will, in our sole discretion, either: (i) repair or replace such products free of charge, or (ii) refund the purchase price of such products.

(g) Warranty Claims

To obtain warranty service, you must call or email our Customer Service Department during the Consumer Warranty Period to obtain a Return Merchandise Authorization “RMA” number. No Warranty service will be provided without an RMA number. Once an RMA number is obtained, we will send an e-mail to you within five business days at the e-mail address provided by you upon your purchase of the products describing the means in which we will honor this limited warranty.

(h) Limitation of Liability.

THE REMEDIES DESCRIBED IN THIS SECTION 12 ARE YOUR SOLE AND EXCLUSIVE REMEDIES AND OUR ENTIRE OBLIGATION AND LIABILITY FOR ANY BREACH OF THIS LIMITED WARRANTY. OUR LIABILITY WILL UNDER NO CIRCUMSTANCES EXCEED THE ACTUAL AMOUNT PAID BY YOU FOR THE DEFECTIVE PRODUCT THAT YOU HAVE PURCHASED THROUGH THE SITE, NOR WILL WE UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY LOSS OF PRODUCTION, WORK, DATA, USE, BUSINESS GOODWILL, REPUTATION, REVENUE OR PROFIT, ANY DIMINUTION IN VALUE, COSTS OF REPLACEMENT GOODS, OR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OR LOSSES, WHETHER DIRECT OR INDIRECT.

SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

(i) Dispute Resolution

The informal dispute resolution procedure detailed in Section 16 is available to you if you believe that we have not performed our obligations under this limited warranty or these Terms.

13. Limited Warranty and Disclaimers for Direct to Business Sales.

(a) We warrant to you, as a business customer or business who resells our products, that for a period of 30 days from the date of shipment (“Business Warranty Period”), the products purchased through the Site will materially conform to our published specifications in effect as of the date of shipment and be free from material defects in material and workmanship.

(b) EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 13(a), WE MAKE NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS PURCHASED THROUGH THE SITE BY YOUR BUSINESS, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (iii)WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.

(c) We are not liable for a breach of the warranties set forth in Section 13(a) unless: (i) you give written notice of the defective products, as the case may be, reasonably described, to us within five business days of the time when you discover or ought to have discovered the defect; (ii) if applicable, we are given an opportunity after receiving the notice of breach of the warranty set forth in Section 13(a) to examine such products; and (iii) we verify your claim that the products are defective.

(d) We are not liable for a breach of the warranty set forth in Section 13(a) if: (i) you make any further use of such products after you give such notice; (ii) the defect arises because you failed to follow our oral or written instructions as to the storage, installation, commissioning, use or maintenance of the products; or (iii) you modify, alter or repair such products without our prior written consent.

(e) Subject to Section 13(c) and Section 13(d), with respect to any such products during the Business Warranty Period, we shall, in our sole discretion, either: (i) repair or replace such products (or the defective part) or (ii) credit or refund the amounts paid by you for such products provided that, if we so request, you shall, at your expense, return such products to us.

(f) THE REMEDIES SET FORTH IN SECTION 13(e) ARE YOUR SOLE AND EXCLUSIVE REMEDIES AND OUR ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN SECTION 13(a).

(g) Limitation of Liability.

(i) IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL OR INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

(ii) IN NO EVENT SHALL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNTS PAID BY YOU FOR THE PRODUCTS SOLD THROUGH THE SITE.

14. Force Majeure. We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms, for any failure or delay in our performance under these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riots or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.

15. Governing Law and Jurisdiction. This Site is operated from the US. All matters arising out of or relating to these Terms are governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule (whether of the State of Colorado or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Colorado.

16. Dispute Resolution and Binding Arbitration.

(a) YOU AND BERG PERFORMANCE, INC., ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.

ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF PRODUCTS THROUGH THE SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.

(b) Mandatory Binding Arbitration.

(i) Any dispute, claim, interpretation, controversy, or issues of public policy arising out of relating to this Agreement, including the determination of the scope or applicability of this Section 16, that is arbitrable will be determined exclusively by binding arbitration held in Denver, Colorado, and will be governed exclusively by the Colorado Revised Arbitration Act, §§ 13-22-201, et seq., C.R.S. (the “CRAA”).

(ii) The arbitrator will be selected from the roster of arbitrators at Judicial Arbiter Group, Inc. in Denver, Colorado (“JAG”), unless the parties agree otherwise. If the parties do not agree on the selection of a single arbitrator within ten Business Days after a demand for arbitration has been made, then JAG will select the arbitrator from among its available professionals. An arbitration will be held in Denver, Colorado. Arbitration of all disputes and the outcome of the arbitration will remain confidential between the parties except as necessary to obtain a court judgment on the award or other relief or to engage in collection of the judgment.

(iii) You and Berg Performance, Inc., irrevocably submit to the exclusive jurisdiction of the state courts located in Denver, Colorado, with respect to this Section 16 to compel arbitration, to confirm an arbitration award or order, or to handle court functions permitted under the CRAA. The parties irrevocably waive defense of an inconvenient forum to the maintenance of any such action or other proceeding. The parties may seek recognition and enforcement of any Colorado state court judgment confirming an arbitration award or order in any United States state court or any court outside the United States or its territories having jurisdiction with respect to recognition or enforcement of such judgment.

(iv) You and Berg Performance, Inc., hereto waive (i) any right of removal to the United States federal courts and (ii) any right in the United States federal courts to compel arbitration, to confirm any arbitration award or order, or to seek any aid or assistance of any kind.

(v) Prior to resolution or a decision by the arbitrator, each party shall bear its own costs and expenses and an equal share of the arbitrators expenses and administrative fees of arbitration. The arbitrator shall award all costs, reasonable attorneys' fees, and expenses of the arbitration proceeding to the substantially prevailing party, as determined by the arbitrator.

(c) You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR BERG PERFORMANCE, INC., WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.

If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced.

17. Waiver of the Defense of Illegality. YOU HEREBY AGREE TO WAIVE ANY DEFENSE AGAINST THE ENFORCEMENT OF THIS AGREEMENT BY US ARISING OUT OF THE DOCTRINE OF ILLEGALITY AND/OR ANY PUBLIC POLICY ARGUMENTS SURROUNDING THE SUBJECT MATTER OF THIS AGREEMENT OR ANY PRODUCTS PURCHASED FROM US.

18. Indemnity. You will indemnify and hold us and our subsidiaries, affiliates, licensors, content providers, service providers, employees, agents, officers, directors, and contractors (collectively, the “Indemnified Parties”) harmless from any breach of this Agreement by you, including any use of Content other than as expressly authorized in this Agreement. You agree that the Indemnified Parties will have no liability in connection with any such breach or unauthorized use, and you agree to indemnify any and all resulting loss, damages, judgments, awards, costs, expenses, attorney’s fees and expert witness fees of the Indemnified Parties in connection therewith. You will also indemnify and hold the Indemnified Parties harmless from and against any claims brought by third parties arising out of your use of the information accessed from this site.

19. Assignment. You will not assign any of your rights or delegate any of your obligations under these Terms without our prior written consent. Any purported assignment or delegation in violation of this Section 19 is null and void. No assignment or delegation relieves you of any of your obligations under these Terms.

20. No Waivers. The failure by us to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of Berg Performance, Inc.

21. No Third-Party Beneficiaries. These Terms do not and are not intended to confer any rights or remedies upon any person other than you.

22. Notices.

(a) To You. We may provide any notice to you under these Terms by: (i) sending a message to the email address you provide or (ii) by posting to the Site. Notices sent by email will be effective when we send the email and notices we provide by posting will be effective upon posting. It is your responsibility to keep your email address current.

(b) To Us. To give us notice under these Terms, you must contact us as follows: (i) by personal email to Berg Performance, Inc., orders@bergperformance.com. We may update the address for notices to us by posting a notice on the Site. Notices provided by personal delivery will be effective immediately. Notices provided by overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent.

23. Severability. If any provision of these Terms is invalid, illegal, void or unenforceable, then that provision will be deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms.

24. Entire Agreement. Our order confirmation, these Terms and Conditions, our Return & Refund policy and our Privacy Policy will be deemed the final and integrated agreement between you and us on the matters contained in these Terms.